People v. Pearley CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD226872
- Trial judge
- Amalia L. Meza
- Outcome
- affirmed — Affirmed and remanded with directions.
- Area
- criminal
- Panel
- O'Rourke (author), Judith L. Haller, Judith D. McConnell
Analysis
The trial court sentenced the defendant to unauthorized terms on counts 7 and 8 based on a misunderstanding of the applicable statutory ranges and issued an abstract of judgment containing clerical errors regarding credits and term calculations for counts 3, 4, and 6. The Court of Appeal affirmed the convictions but remanded the case for resentencing on counts 7 and 8 and directed the correction of the abstract of judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Sentencing on counts 7 and 8“Thus, the correct lower term on count 7 in the instant case is three years, not five years, and the correct lower term on count 8 is one year six months, not two years six months.” | de novo | error | agree with court agree with court |
Abstract of judgment for counts 3, 4, and 6 and conduct credits“The terms are, rather, one-third the middle term (§ 1170.1, subd. (a)), and vary from the court's oral pronouncement of judgment.” | de novo | error | agree with court agree with court |
Authorities
- relied: People v. Riskin (2006) 143 Cal.App.4th 234 — Ex post facto principles proscribe a punishment greater than that prescribed when the offenses occurred.
- relied: People v. Hiscox (2006) 136 Cal.App.4th 253 — An ex post facto violation resulting in an unauthorized sentence may be raised on appeal even if the defendant failed to object below.
- relied: People v. Gutierrez (2014) 58 Cal.4th 1354 — Remand for resentencing is appropriate when it is not clear the court would have imposed the same terms had it been fully informed of the correct sentencing options.
- relied: People v. Mitchell (2001) 26 Cal.4th 181 — The abstract of judgment must be corrected to reflect the court's oral pronouncement of judgment.
The appellate opinion: sound — sound
How this analysis was made · dispute it
unusual dispositionThe trial court sentenced Pearley, after a jury convicted him of multiple child sex offenses, to 15 years to life plus 11 years, selecting a five-year lower term on count 7 and a two-year-six-month concurrent lower term on count 8 under the current version of section 288, subdivision (b)(1), and issued an abstract of judgment that mischaracterized the counts 3, 4 and 6 terms and misstated custody credits. The Court of Appeal affirmed the convictions but held the count 7 and 8 terms were unauthorized under ex post facto principles because the lower terms in effect when the offenses occurred (2008-2009) were three years and one year six months, remanded for resentencing, and ordered the abstract corrected to match the oral pronouncement.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of a five-year lower term on count 7 (forcible lewd act, § 288, subd. (b)(1)) and a two-year-six-month lower term on count 8 (attempted forcible lewd act) using the sentencing triad in effect at sentencing rather than the triad in effect when the offenses were committed in 2008-2009.“Thus, the correct lower term on count 7 in the instant case is three years, not five years, and the correct lower term on count 8 is one year six months, not two years six months.” | de novo | error (law misapplied) | agree with court Whether a sentence exceeds the statutory maximum in effect at the time of the offense is a pure question of law. The former section 288(b)(1) triad of three, six and eight years governed offenses committed before the 2010 amendment, and section 664(a) halves those terms for the attempt. Applying the later, harsher triad violates ex post facto principles (Riskin), the resulting unauthorized sentence is reviewable despite no objection (Hiscox), and because the court misunderstood the scope of its discretion, remand rather than mechanical correction is the proper remedy under Gutierrez. The Attorney General conceded the point. The analysis is correct. |
Abstract of judgment describing the two-year terms on counts 3, 4 and 6 as one-third the lower term rather than one-third the middle term, and reflecting 1017 actual days and 1185 total credits instead of the 1033 actual days and 1187 total credits orally awarded.“Respondent correctly concedes the abstract must be corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)” | de novo | error (procedure) | agree with court The oral pronouncement of judgment controls over the abstract, and under Mitchell an appellate court may order correction of clerical errors in the abstract. Section 1170.1(a) prescribes one-third the middle term for consecutive subordinate terms, so the abstract's 'one-third the lower term' label was wrong. The credit discrepancy is likewise clerical. The court's direction that an amended abstract issue after resentencing is the standard and correct remedy. |
Authorities
- relied: People v. Riskin (2006) 143 Cal.App.4th 234 — Ex post facto principles prohibit imposing punishment greater than that prescribed by law when the offense was committed.
- relied: People v. Hiscox (2006) 136 Cal.App.4th 253 — An ex post facto violation producing an unauthorized sentence may be raised on appeal even absent an objection in the trial court.
- relied: People v. Gutierrez (2014) 58 Cal.4th 1354 — When a sentencing court misunderstood the scope of its discretion, remand for resentencing is required unless the record clearly shows the court would have imposed the same sentence had it been properly informed.
- relied: People v. Mitchell (2001) 26 Cal.4th 181 — The oral pronouncement of judgment controls, and appellate courts may order correction of clerical errors in the abstract of judgment.
The appellate opinion: sound — The opinion correctly identifies the governing former sentencing triad, applies settled ex post facto and unauthorized-sentence doctrine with appropriate authority, and properly remands under Gutierrez rather than simply substituting terms, while ordering routine abstract corrections under Mitchell. The only blemishes are minor: typographical errors in statutory citations (e.g., 'subd. (b)(a)' and '§ 1203.0666') and an apparent arithmetic inconsistency in describing the abstract's credit totals, none of which affects the result.
Opinion
Filed 4/14/15 P. v. Pearley CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065068
Plaintiff and Respondent, v. (Super. Ct. No. SCD226872)
RONALD BERNARD PEARLEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Amalia L.
Meza, Judge. Affirmed and remanded with directions.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent. In October 2013, a jury found Ronald Bernard Pearley guilty of aggravated sexual assault of a child (Pen. Code,1 § 269, subd. (a)) (count 1), two counts of committing a forcible lewd act upon a child (§ 288, subd. (b)(1)) with substantial sexual conduct with a child under 14 years of age (§ 1203.0666, subd. (a)(8)) (counts 2 and 7), two counts of committing a lewd act upon a child (§ 288, subd. (a)) with substantial sexual conduct with a child under 14 years of age (§ 1203.0666, subd. (a)(8)) (counts 3 and 6), committing a lewd act upon a child (§ 288, subd. (a)) (count four) and attempting to commit a forcible lewd act upon a child (§§ 664, 288, subd. (b)(1)) (count 8). In December, the court sentenced Pearley to prison for 15 years to life on count 1 plus 11 years; a stayed (§ 654) three-year lower term on count 2; two years each (one-third the middle term) on counts 3, 4 and 6; the five-year lower term on count 7 (the principal term) and a concurrent lower term of two years six months on count 8. Pearley appeals, contending the sentences on counts 7 and 8 were unlawful and asks us to correct those sentences. He also contends clerical errors in the abstract of judgment concerning counts 3, 4, and 6 and credits must be corrected to reflect the court's oral pronouncement of judgment.
The offenses in counts 7 and 8 occurred between March 2008 and September 2009. During those years, the lower, middle and upper terms for the offense in count 7, committing a forcible lewd act upon a child, were three, six, and eight years. (Former § 288, subd. (b)(a).) As is still the case today, the terms for the offense in count 8, 1 Further statutory references are to the Penal Code. 2 attempting to commit a forcible lewd act upon a child, were one-half the terms for the offense attempted. (§ 664, subd. (a).) Ex post facto principles proscribe a punishment greater than that prescribed when the offenses occurred. (People v. Riskin (2006)
143 Cal.App.4th 234, 244.) Thus, the correct lower term on count 7 in the instant case is three years, not five years, and the correct lower term on count 8 is one year six months, not two years six months. "[A]n ex post facto violation resulting in an unauthorized sentence may be raised on appeal even if the defendant failed to object below."
(People v. Hiscox (2006) 136 Cal.App.4th 253, 258.) Respondent correctly concedes the sentences the court imposed on counts 7 and 8 are unauthorized and asks us to vacate those sentences and remand the matter so that the sentencing court may exercise its discretion to select the appropriate terms. Although the court stated its intent to impose the lower term on counts 7 and 8, and gave reasons for its choice, the court misunderstood the possible lower, middle and upper terms and thus the scope of its sentencing discretion. Because it is not clear the court would have imposed the same terms had it been fully informed, we remand for resentencing. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
As to counts 3, 4, and 6, the abstract of judgment reflects two-year terms characterized as one-third the lower term. The terms are, rather, one-third the middle term (§ 1170.1, subd. (a)), and vary from the court's oral pronouncement of judgment.
Additionally, the court awarded Pearley 1033 days' actual credits and 154 days' conduct credits (§ 2933.1), a total of 1187. The abstract reflects 1017 and 154 days, respectively, 3 and a total of 1185. Respondent correctly concedes the abstract must be corrected.
(People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The judgment of conviction is affirmed. The case is remanded to the superior court for resentencing in a manner consistent with this opinion. After resentencing, the court shall prepare an amended abstract of judgment (including the corrections discussed above) and forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
O'ROURKE, J.
WE CONCUR:
MCCONNELL, P. J.
HALLER, J.
Cites, in this corpus
- People v. Gutierrez S206365; S206771 · 2014-05-05
- People v. Riskin F047102 · 2006-09-22
- People v. Hiscox A105383 · 2006-01-31
- People v. Mitchell S090791 · 2001-07-19